Promoting Public Participation in the Energy Transition: R

R MAUGER PER / PELJ 2019 (22) 1

Abstract

In an energy transitions era, the citizens tend to be increasingly considered as actors of the energy system. This situation reinforces in turn the importance of public participation processes into energy policy or legislation design. In 2012-2013, a significant public participation process in the field of energy policy was organised in France, named National Debate on the Energy Transition. From the beginning, it was proclaimed that its results would be integrated into a flagship energy transition act, which did happen with the adoption of the Energy Transition for Green Growth Act of 2015. This paper provides an overview of the organisation of this public debate and of the integration of its outcome into the Energy Transition Act. The experience of France can serve for other countries engaged in a process of transition towards a more sustainable society and especially towards a massive change of their energy mix. It addresses the successes as well as the failures of the French case and provides some key learning points to enhance the public participation into the Law-making process concerning the energy transition.

Keywords

Energy transition; France; public participation; National Debate on the Energy Transition (DNTE); Energy Transition Act; participative law-making.

……………………………………………………….

Promoting Public Participation in the Energy Transition:

The Case of France's National Debate

R Mauger*

Pioneer in peer-reviewed,

open access online law publications

Author

Romain Mauger

Affiliation

University of Groningen, the Netherlands

Email

[email protected]

Date Submission

24 January 2018

Date Revised

31 October 2018

Date Accepted

10 January 2019

Date published

18 March 2019

Editor Prof C Rautenbach

How to cite this article

Mauger R "Promoting Public Participation in the Energy Transition: The Case of France's National Debate" PER / PELJ 2019(22) - DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4290

Copyright

DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4290

https://creativecommons.org/licenses/by/4.0/


1 Introduction

In the field of energy transition some countries have already implemented

public participation processes for the creation of long-term energy

policies.1 However, the French Government endeavoured to go one step

further with its National Debate on the Energy Transition (Débat national

sur la transition énergétique), hereafter DNTE or "national debate", which

took place in 2012-2013 and was supposed to result in strong

recommendations to be integrated into the flagship Energy Transition for

Green Growth Act of 2015 (hereinafter Energy Transition Act).

This national debate marked a new step in France's energy policy- and

law-making, in a country otherwise known for its "long-standing jacobinist

tradition in public policy".2 Traditionally, the French energy policy – marked

by a very strong share of nuclear power in electricity production3 - was

designed by a "minuscule super-elite of engineers".4 But, as Schneider5

highlights, for the first time in France's modern history, energy policy was

submitted in 2012-2013 to a significant public participation process, the

DNTE.

Far from being a purely technological issue, the energy transition was then

the subject of wide public participation:

The national debate on the energy transition launched in November 2012 by

the new French government is part of a global reflection on our future ways

of life and their implications for our economic system and our methods of

governance: how do we want to live - differently, better - in 10, 20 or 30

years? Based on current technical and scientific knowledge and on future

scenarios, how can we appreciate the costs and benefits, risks and

opportunities of an energy transition and make significant short- and long-

* Romain Mauger. LLB (Université Catholique de Lyon – France) LLM (Université de

Montpellier – France) PhD in Public Law (Université de Montpellier – France). At the time of writing of the article. Invited researcher, Faculty of Law, North-West, South Africa. Currently post-doctoral researcher at the Groningen Centre of Energy Law, Faculty of Law, University of Groningen, the Netherlands. E-mail: [email protected].

1 Eg in the Netherlands, Hendriks 2009 Policy Sciences 341-368; or in Poland, Wagner, Grobelski and Harembski 2016 ERSS 163.

2 Poupeau 2013 Environ Policy Gov 157. Jacobinism is a term originating in the French revolution and indicating nowadays a strong central government prone to intervene on the market to change society.

3 71,6 % in 2017. See RTE 2018 http://bilan-electrique-2017.rte-france.com/production/le-parc-de-production-national/.

4 Schneider 2013 Bull At Sci 31. See also Aykut and Evrard 2017 Revue Internationale de Politique Comparée 23-24.

5 Schneider 2013 Bull At Sci 27-28, 33.


term choices? This is the truly political and civic sense and scope of this

debate.6

To be exhaustive, the DNTE adds up to 3 older national debates explicitly

dealing with energy, held in 1981, 1994 and 2003,7 although these were

less open to the public or reached a clearly lower scale in public

participation than for the DNTE. For this debate, the increased public

participation content and the commitment to include its results in an act

actually comes from environmental policy. More specifically, from the 2007

Grenelle de l'environnement, a name inherited from social negotiations

held in 1968 in Paris,8 which gathered five parties to take part into the

drafting of a national framework law on environmental issues, including

some energy aspects (eg renewable energy production).9 These five

parties were the employers and employees unions, environmental non-

governmental organisations (NGOs), local representatives associations

and State authorities. Finally, this public participation process ended up

with two acts adopted by Parliament in 2009 and 2010: Grenelle I and

Grenelle II.10 However, "the nuclear issue was not allowed on the table",11

as it was considered too controversial,12 underlining the barrier to public

information and participation on this sensitive issue at this time.

Since May 2012, with the election of President François Hollande, the

term "energy transition" gained progressively such prominence that in

2015 it was "exceptional to go a single day without seeing or hearing those

words".13 The word "transition", from the Latin root trans-ire, to go beyond,

transmits this idea of movement towards a different situation. It can label

an incremental process as well as a much more radical one.14 Yet, when it

is about energy transition, it seems that it is in most cases an evolutionary

process rather than a revolutionary one.15 In France, the energy transition

6 IDDRI 2013 http://www.iddri.org/Iddri/Lettre-de-l-Iddri/Contribuer-au-debat-sur-la-

transition-energetique. 7 Aykut and Evrard 2017 Revue Internationale de Politique Comparée 39. 8 Deumier 2008 RTD Civ 63. 9 Van Lang 2011 Droit Administratif 1. 10 Van Lang 2011 Droit Administratif 1. 11 Schneider 2013 Bull At Sci 28. 12 The nuclear topic was already at the heart of three public debates held in 2005 and

2006: a policy debate on radioactive wastes, and two more local ones on the third generation nuclear reactor (EPR) to be built in Flamanville and on the very-high-voltage line to be built as a result. The outcome of these debates was quite negative for a sum of reasons including political interference. See Ballan et al "Anticipation et contrôle dans les débats publics" 132-133.

13 Guerry "Reflection on Some Legal Aspects of Decision Control" 194. 14 Jaglin 2014 http://www.liberation.fr/france/2014/08/26/le-mot-transition-est-un-

terme-imprecis-et-insuffisant_1087459. 15 Sovacool "History and Politics of Energy Transitions" 17-18. See also Aykut,

Evrard and Topçu 2017 Revue Internationale de Politique Comparée 8.


concerns the movement from an energy system heavily based on fossil

and fissile fuels towards one relying on renewable energy sources.

Candidate Hollande promised to "open an environmental conference

which will lay down an agenda, priorities and means",16 that directly

concerned energy policy, inter alia. This commitment took the shape of a

cycle of annual 2-day conferences held in Paris from 2012 to 2016,

gathering the five parties engaged in the Grenelle de l'environnement and

adding a sixth one: Parliamentarians. The objective of the environmental

conferences was "to show a change in the method, a change of approach

and therefore in the results"17 of environmental policy (inducing a change

in many other sectors linked, such as energy, housing, transportation, etc).

These meetings allowed the Government to meet different actors

interested in environmental matters and regulation, to make

announcements, and to provide them with a yearly feedback on its

actions. Among the declarations made in September 2012, for the first

environmental conference, the Government committed to organise the

DNTE and provided some elements regarding its rationale, method and

institutions.18

The DNTE, object of this paper, was a public participation process

organised from November 2012 to July 2013 aimed at feeding a draft law

on energy transition.19 It can be considered as the result of the influence of

environmental policy- and law-making over energy policy- and law-making

in France. It must be underlined that this movement of increased public

participation to the definition of energy policies is not happening in France

alone, but that under the influence of the 1998 Aarhus Convention,20

"energy governance is becoming increasingly democratic"21 as it is

"coming closer [to environmental regulation] in the context of the low-

carbon transition".22 More specifically, its article 7 requires States to

guarantee "opportunities for public participation" to the drafting of "policies

relating to the environment", a provision which is controlled by the Aarhus

compliance committee.23 In addition, in France, the constitutional and legal

framework clearly incentivises public debates such as the DNTE, as will

16 Le Monde 2012 http://www.lemonde.fr/election-presidentielle-2012/article/2012/

01/28/ecologie-francois-hollande-s-engage-a-ouvrir-une-conference-environnementale_1636011_1471069.html#GEgdpQWwzR6xxdKZ.99.

17 Hollande "Déclaration du Président de la République" 8. 18 Anon Dépêches Jurisclasseur 2012. 19 The elements of its organisation (calendar, parties, etc.) are detailed in s 3 of this

paper. 20 Convention on Access to Information, Public Participation and Decision-Making

and Access to Justice in Environmental Matters, Aarhus, 25 June 1998 (Aarhus Convention (1998)).

21 Duvic-Paoli "Public Participation in the Context of Energy Activities" 1. 22 Duvic-Paoli "Public Participation in the Context of Energy Activities" 4. 23 Duvic-Paoli "Public Participation in the Context of Energy Activities" 4-8.


be developed later in this paper.24 This article addresses the recent

important place that public participation has taken in the law-making

process concerning the energy transition in France. The DNTE constituted

a remarkable experience of what can be called "participative law-making",

as it endeavoured to integrate civil society and many sectorial

representatives to a process based on science and transparency and

aiming to lay the foundations for a flagship Energy Transition Act.

In the following sections, this paper will review the foundations and

objectives, the organisation and the outcome of the DNTE, before

analysing the integration of its outcome into the Energy Transition Act.

Finally, this paper concludes by providing some recommendations to any

State willing to organise a wide public participation process destined to

influence legislative drafting, especially but not limited to energy matters.

2 Foundations and objectives of the national debate

The general and legal foundations (mainly the principles and the context

underlying the debate) and the objectives of the DNTE are to be found in

two soft law documents: the 2012 environmental conference roadmap25

(hereinafter 2012 roadmap) resulting from the 2012 environmental

conference and the DNTE charter.26

2.1 General foundations of the DNTE

According to the 2012 roadmap, France is facing unprecedented climate

and energy challenges (higher frequency and scale of droughts and

floods, among others). But whilst climate change poses a global threat, the

fight against it can also promote a "new model of smart, sustainable and

solidary growth".27 The energy transition in France takes place in this

context.

Conscious of the role played by energy in climate change,28 the 2012

roadmap asked the DNTE participants to address the following questions:

– How to move towards energy efficiency and frugality?

24 See para 2.2. 25 Feuille de route pour la transition écologique in ministerial circular "sur

l'organisation du débat national de la transition énergétique" of 30 January 2013 (hereafter MC of 30 January 2013) annex 1.

26 Charte du débat national sur la transition énergétique in MC of 30 January 2013 annex 4 (hereafter Charte du DNTE).

27 MC of 30 January 2013 5. 28 See, for France alone, Agence européenne pour l'environnement 2015

http://www.statistiques.developpement-durable.gouv.fr/lessentiel/ar/199/1080/emissions-gaz-effet-serre-secteur-france.html.


– Which pathway to reach the chosen energy mix for 2025? What type of scenarios are possible by 2030 and 2050, with respect to the climate commitments of France?

– Which choices to make in matters of renewable sources of energy and new energy technologies and which industrial and local development strategy?

– What are the costs and financing for the energy transition?29

To answer these questions and find the best solutions, the DNTE charter

specifies that the national debate has to provide "democratic and citizen

involvement, in an open and transparent manner".30 Thus, section 2 of the

DNTE charter states that the debate "is based on respect for diversity and

plurality of views".31 This diversity was also a requirement for the

constitution of the bodies established for the debate. The reference to

diversity in this section was not just about the gender issues, but also and

even more about the diversity of interests and backgrounds of the

participants. In addition, the same section states that the DNTE aims at

defining a "convergence" towards "the general interest of the Nation", by

"the comparison of viewpoints [and] the expression of divergent views".32

To foster expression of this diversity of opinions, section 3 of the charter

requests that the DNTE informs the citizens and allows them to

participate.33 To do so, public and private legal entities are free to organise

debates contributing to the DNTE, providing a kind of decentralised and

opened framework.34 Finally, all the contributions are supposed to be

transferred to the national bodies of the DNTE to be taken into account in

the final outcome of the debate.35

In a nutshell, the principles underlying the DNTE can be concentrated in

one word: diversity. It seems that during the DNTE there was a willingness

to show that every opinion is worth to be heard and that every individual or

group should express itself regarding the energy transition.

2.2 Legal foundations of the DNTE

In France, as underlined before, it is highly unusual to open an energy

law-making process to public participation; with the President of the

Republic committing to include the outcome of that process into the draft

legislation.36 Public participation requirements usually apply to plans or

29 MC of 30 January 2013 2-3. 30 Section 1 para 1 of the Charte du DNTE. 31 Section 2 para 1 of the Charte du DNTE. 32 Section 2 para 2 of the Charte du DNTE. 33 Section 3 para 2 of the Charte du DNTE. 34 Section 3 para 3 of the Charte du DNTE. 35 Section 3 para 4 of the Charte du DNTE. 36 Hollande "Déclaration du Président de la République" 8.


projects that could have an environmental impact, without including policy

or legislation drafts.37 Indeed, historically in France, public participation

refers to environmental impact assessment (EIA)38 and public inquiry39

which, together, aim at gathering information on a project's environment

(population and health, biodiversity, soils, water, air, climate, material

assets, cultural heritage and landscape40) before its implementation, on its

(cumulative) impact on these elements, and finally to provide the public

with these data and collect its remarks. Since 2004 and 2010 only,

respectively EIA and public inquiry requirements were added for plans and

programmes,41 and a 2016 ordinance42 finally formally included the option

for the government to organise "a national public debate on the drafting of

a reform concerning a public policy significantly impacting the environment

or land use planning".43 This debate can also be organised on request

from sixty members of the Assemblée Nationale, sixty from the Senate or

500 000 adult EU residents living in France.44 Hence, in 2012-2013, the

DNTE was developed outside any legal obligation.

It is however worth to be noted that the establishment of the DNTE could

have constituted a voluntarily extensive application by the Government of

section 7 of the Environment Charter of 2004,45 a text of constitutional

rank in France. This section states that:

Every person has the right, in the conditions and limits legally defined, to have access to the information related to the environment in possession of the public authorities, and to participate to the production of public decisions having an impact on the environment.

As Brunet notes, this provision is quite open when it comes to public

participation to the production of public decisions, as it simply mentions

the "impact on the environment", without referring to a "significant" or

"direct" impact.46 Concerning the term "public decisions", it is wide enough

37 See Environment Code ss L. 120-1 to L. 125-40. 38 See Environment Code ss L. 122-1 to L. 122-3-4. 39 See Environment Code ss L. 123-1 to -18. 40 Environment Code s L. 122-1, III. 41 For EIA, since the Ordinance 2004-489 of 3 June 2004 that Transposes Directive

2001/42/CE of the European Parliament and of the Council of 27 June 2001 on the Assessment of the Effects of Certain Plans and Programmes on the Environment s 1; for public inquiries, since the National Commitment for the Environment Act 2010-788 of 12 July 2010 s 236.

42 Ordinance 2016-1060 of 3 August 2016 to Reform Procedures to Ensure Information and Participation of the Public to the Conception of Decisions which may have an Impact on Environment s 2.

43 Environment Code s L. 121-10. 44 Environment Code s L. 121-10. 45 Section 7 of the Charte de l'environnement of 2004. Constitutional rank granted by

Constitutional Act related to the Environment Charter 2005-205 of 1 March 2005. 46 Brunet 2016 AJDA 1327.


to include a law-making process.47 Hence, it is advised to automatically

develop a public participation process related to the drafting of an act such

as this one, as there is no doubt that national energy policy will have an

impact on the environment.

Despite all the elements raised, section 1 of the DNTE charter only

mentions the European and international commitments in matters of

greenhouse gases (GHG) emissions reductions.48 The international

commitments referred to are mainly the Kyoto Protocol and its objectives

for 2020.49 The European commitments are specified a few lines thereafter

and concern the "energy package" and its "20X20X20 by 2020"

objectives.50 In both cases, these requirements were already integrated

into French law at the moment of the DNTE51 and constituted legally

binding objectives for which the debate was supposed to organise the

pathway to. Therefore, one can note that the legal foundation of the DNTE

is linked to the energy and climate international and European

commitments of France, but not at all on its applicable public participation

provisions.

2.3 Objectives of the DNTE

According to section 1 of the DNTE charter, the national debate "aims to

enlighten the French Nation on the fundamentals of energy and the

reasons for the energy transition".52 It was therefore an aim purely about

top-down information to the public. Nevertheless, the same section

specifies that the debate "must indicate the conditions for this transition".53

Herein lies the goal of the DNTE:

[...] to define the most economically and ecologically relevant and the

socially fairest way to engage in this energy transition.54

The DNTE must therefore provide the means and the trajectory of the

energy transition in order to reach its goals. It does not choose the goals

already fixed by the existing international, European and national legal

frameworks or by the Government's promises. The last paragraph of

47 In a recent case, the Conseil d'État explicitly included the Parliament's work into a

report on risk consideration in public decision. Conseil d'État 2018 http://www.ladocumentationfrancaise.fr/rapports-publics/184000392/index.shtml 89.

48 Section 1 para 1 of the Charte du DNTE. 49 Article 1 of the Doha Amendment to the Kyoto Procotol (2012). 50 Section 1 para 1 of the Charte du DNTE. 51 See s 2 of the Programming Act regarding the Implementation of the Grenelle de

l'Environnement 2009-967 of 3 August 2009. 52 Section 1 para 1 of the Charte du DNTE. 53 Section 1 para 2 of the Charte du DNTE. 54 Feuille de route pour la transition écologique in MC "sur l'organisation du débat

national de la transition énergétique" of 30 January 2013 annex 1 4.


section 1 of the DNTE charter, states that the debate will result in

"recommendations that the Government commits to integrate in the

drafting of the energy transition act".55 These recommendations,

constituting the format of submissions of the DNTE's outcome, was the

subject of deep tensions between the different participants of some of the

main bodies of the debate. Before addressing this conflict, the following

section will provide an overview of the architecture and timeframe of the

debate.

3 Organisation of the national debate

3.1 The architecture of the institutional framework of the DNTE

The role and composition of the different bodies as well as the timeframe

of the DNTE were provided in a Ministerial circular on the organisation of

the DNTE of 30 January 2013, read with annex 4 of the charter. Figure 1

below provides an overview of the architecture of the DNTE bodies and its

main events.56

Figure 1 Architecture of the bodies of the DNTE

55 Section 1 para 5 of the Charte du DNTE. 56 Translation from the Synthèse des travaux du DNTE de la France of 18 July 2013

(hereafter Synthèse des travaux du DNTE) annex 3 2. The Energy Days (seen after) are not included in this graphic.


3.1.1 The national council of the debate

The national council of the debate (CND) was the main body of the DNTE,

especially to fulfil its mission. Section 4 of the DNTE charter compares it to

a Parliament as it organised the dialogue between the different actors of

the debate. Constituted of 112 members equally distributed in 7 Colleges,

it was based on the parties of the 2012 environmental conference, but

added a seventh group, made up of non-environmental NGOs: consumer

and families associations, poverty combatting organisations and chambers

of commerce.57

The council played a very important role during the DNTE. First, it

validated the DNTE charter58 and determined the main orientations of the

debate and its schedule.59 Then, at the end of the debate, it had to

"approve the synthesis of the debate", organise "the formulation of its

recommendations" and highlight "the areas of existing consensus and the

ones causing disagreement".60

57 Section 4 para 1 of the Charte du DNTE. 58 Section 4 para 4 of the Charte du DNTE. 59 Section 4 para 2 of the Charte du DNTE. 60 Section 4 para 4 of the Charte du DNTE.


In between, the council "can proceed to public hearings on the main

themes of the debate",61 a competence it used 23 times with ministers,

associations, international experts, etc.62 Also, the Council created

working groups, and eight saw the light.63

As it was the one body supposed to produce the final synthesis with the

recommendations, thus influencing the energy transition draft law, the

Council could be seen as a "pre-law-maker".

3.1.2 The monitoring committee

Regulated by section 5 of the DNTE charter, the monitoring committee

was:

[T]he guarantor of the respect for the rules of the debate, of the collection of pluralist opinions, of the respect for the […] charter, of the democratic nature

of the debate it is coordinating.64

The charter does not specify the number of the committee members, but it

states that they are appointed by the Government.65 Thus, the government

chose six persons.

Yet, its composition caused tremendous turmoil for various reasons and

led to the withdrawal of multiple environmental NGOs from the debate.

First, while it had been promised that the composition of the committee

would be submitted to consultation with the parties (the CND members),

that did not happen. Instead, its composition was directly revealed in the

newspapers without any consultation.66 Second, two of its six members

where directly linked to the nuclear industry (Anne Lauvergeon, former

Areva CEO and Pascal Colombani, ex-general administrator of the Atomic

Energy Commission (CEA)) – when there was no representative of

another energy source. Such a disproportion in the debate on the

evolution of an energy mix mainly based on nuclear energy for electricity

production sent out a very bad signal regarding the true willingness of the

Government to opt for real transition. Although the former CEA general

administrator resigned from its position, Lauvergeon remained in the

committee,67 still providing an extraordinary and not representative place

to nuclear in this body. Third, the NGOs criticised the fact that the

committee was led by the Minister responsible for environmental and

energy issues while they requested a neutral presidency.68 The Minister

61 Section 4 para 3 of the Charte du DNTE. 62 Synthèse des travaux du DNTE annex 3 5. 63 Synthèse des travaux du DNTE annex 3 4. 64 Section 5 para 1 of the Charte du DNTE. 65 Section 5 para 1 of the Charte du DNTE. 66 CLER et al 2012 http://www.rac-f.org/Les-ONG-ne-veulent-pas-d-un-debat. 67 Schneider 2013 Bull At Sci 29. 68 Schneider 2013 Bull At Sci 29.


was then both judge of and be judged by a public debate, as well as

recipient of the final recommendations.

The mandate of the monitoring committee also created some challenges.

Effectively, the charter requested the committee to present to the CND

"the questions to explore and debate as well as the intermediary reports

and syntheses".69 It also had to conduct "a review of the process of the

debate".70 However, this mandate lacked precision. What was the

difference between the final synthesis of the DNTE and the different

reports, the syntheses and the reviews that the committee had to

produce? How these documents influenced the debate and how the

committee chose the questions to debate? The Ministerial circular of

January 2013 and its annexes were quiet on these issues.

On that basis, it remained unclear how the monitoring committee,

supposed to be the guarantor of the respect for the charter and its

principles, could have controlled and stimulated the diversity of the DNTE

while being itself not perfect. It was uncertain how it was supposed to

promote an open and transparent debate while its own mandate was

vague?

3.1.3 The expert group

The expert group was composed of recognised French or international

experts representing "the diversity of the scientific community and of

economic, social, union, associative and local actors".71 In accordance

with section 7 of the DNTE charter the group should have been pluri-

disciplinary and pluralistic and its members should have belonged to

public organisations (State and agencies, universities), companies,

unions, associations and foreign institutes, all with a strong experience in

energy matters.72

The main task of the group was to support the CND in various ways. As

the charter notes:

It brings, by its contributions, the scientific, economic, social, environmental, technical and financial data necessary to the debate. It is responsible for providing an expert opinion on the documents underpinning the debate in order to promote an informed and well-argued dialogue. The group of experts analyses and compares the available national and international scenarios. It delivers to the Council an expertise on the 2020 and 2025

pathways compliant with the 2050 objectives.73

69 Section 5 para 2 of the Charte du DNTE. 70 Section 5 para 4 of the Charte du DNTE. 71 Section 7 para 1 of the Charte du DNTE. 72 Synthèse des travaux du DNTE annex 5. 73 Section 7 para 2 of the Charte du DNTE.


The expert groups' participation highlights the utmost importance of

science in building an efficient and satisfactory public participation process

on energy transition. It constitutes without a doubt the most accepted body

of the DNTE due to the diversity and experience of its members.

3.1.4 The Citizen committee

The Citizen committee was composed of 20 persons drawn and

representing the diversity of French society (with regards to gender, age,

profession, accommodation owner/renter, transportation mode to go to

work, geographical distribution, and marital status).74 This committee

convened three times for a one-day meeting in February, April and June

2013. The first to collect a layman understanding of energy and the energy

transition, the second to work on energy transition goals and scenarios,

and the third to provide recommendations on the propositions of the CND

before the finalisation of the synthesis.75

According to section 8 of the DNTE charter, the committee "is the observer

of the public participation at every step of the debate", but this did not

emerge from the synthesis of its sessions. It was also called to ensure "the

educational quality of the information provided for the debate", a task

which also did not appear in the concerned synthesis. In fact, the Citizen

committee mainly highlighted the need for more information delivered to

the public on energy transition.76 Finally, it was tasked with an

"assessment of the recommendations submitted by the national council".

During its last session, the Citizen committee considered this analysis.

Briefly, it recommended to the CND to focus less on coercion and more on

financial incentives and enhanced access to information in its final

synthesis.77 It also noted that the possibilities opened for enhanced local

actions (by local authorities) into the energy transition are very limited,

while it conceived a need for a national impetus and the monitoring of a

transition directly implemented by local actors at local level.78

In summary, it seems that the Citizen committee had more of a witness

role, but its contribution was very useful in order to remind the energy

specialists and decision-makers that the population, before and even after

dissemination of information, is firstly concerned by the cost of power and

their own material comfort, aspects that are often overlooked in expert

debates.

3.1.5 The General secretary

74 Synthèse des travaux du DNTE annex 12 2. 75 Synthèse des travaux du DNTE annex 12 1-47. 76 Synthèse des travaux du DNTE annex 12 15-16. 77 Synthèse des travaux du DNTE annex 12 37-38. 78 Synthèse des travaux du DNTE annex 12 43.


Placed under the guidance of the monitoring committee, the General

secretary was the administrative body of the debate in charge of its

operational organisation.79 It was led by a senior official. It was the

General secretary that presented the draft synthesis to the CND.80

However, as for the monitoring committee, the limits of its role regarding

the synthesis were not specified by the charter.

3.1.6 The committee for connection with local debates

The committee for connection with local debates was composed of

representatives of national associations, local authorities and specialised

associations. Its mission was to follow the local debates taking place in the

territories and make sure that their syntheses respected the established

format in order to facilitate their compilation at the national level.81 It also

coordinated the regional conferences, mentioned in graphic 1, a regional

frame gathering local authorities' representatives charged with organising

and producing a synthesis of the local debates taking place in their

territories.82

Additionally, the decentralised regional energy and environmental services

had to contribute to the debate on the local energy situation.83

3.1.7 The committee for connection with energy companies

A committee for connection with energy companies was added at the last

moment when the DNTE had already started. This committee was not

mentioned in the 2012 environmental conference roadmap. The

committee was added due to the fact that energy companies had

complained about their alleged lack of representation among the bodies of

the debate. This complaint was, however, unsubstantiated given that into

the colleges of employers and employee unions of the CND, the energy

branches were the ones representing their respective associations.

Energy companies had then two bodies to act on their behalf and impact

the debate.

This bring into question the respect for the charter values of diversity as

energy companies were double-represented, while this was not the case

for other actors such as NGOs.

According to section 10 of the DNTE charter, this committee "allows for an

organised and transparent dialogue with the economic actors of energy".

More specifically, this committee was aimed at proposing:

79 Section 6 of the Charte du DNTE. 80 Section 4 para 4 of the Charte du DNTE. 81 Section 9 of the Charte du DNTE. 82 MC of 30 January 2013 3-4. 83 MC of 30 January 2013 4.


[A] dialogue area to foster the debates, particularly on the feasibility of the different options [including the scenarios] and on the implications in terms of costs, benefits and industrial structuring.

Various questions then arise. Was it not the role of the State to estimate

the costs and benefits of scenarios for energy policies? Or the task of the

group of experts? In this case, this fundamental aspect of energy policy

seems to have been delegated to the incumbent companies which have

no interest into a deep and ambitious energy transition.

As feared, this body has proved conservative. It submitted a synthesis

that, inter alia, called for the preservation of the incumbent sources of

energy: nuclear, gas and oil.84 The synthesis published by the committee

was then criticised by a handful of professional unions representing

renewable energy sectors, arguing that it suggested "continuity more than

transition".85

Although the effort to give a place to various sectors of civil society and

professional organisations may be saluted, Meadowcroft reminds that:

[t]he proliferation of centres of power, the growth in the number of implicated actors, or an increase in veto points, can make organized efforts for reform

more difficult.86

The main challenge, as addressed below, was then to organise these

bodies and reach an ambitious conclusion. The main public participation

events of the DNTE will now be discussed.

3.2 The main public participation events of the DNTE

As stated in the 2012 environmental conference roadmap, the DNTE was

sequenced in three phases, supposed to run from November 2012 until

May 2013.87 However, the process was extended until July 2013. In

theory, the last months of 2012 should have been dedicated to the

information of the public. January to April 2013 was supposed to be the

participation phase with many forms of public meetings. And finally, in May

the same year the synthesis of the DNTE should have been elaborated by

the CND and fed into the energy transition draft legislation due to be

presented to Parliament in June 2013.

84 Synthèse des travaux du DNTE annex 23 8. 85 AFPG et al 2013 http://cluster006.ovh.net/~feeuyddi/wp-content/uploads/2013/

10/cp-24-avril-2013-re%CC%81action-des-membres-du-groupe-contact-entreprises-de-le%CC%81nergie.pdf.

86 Meadowcroft 2007 J Environ Pol Plann 307. 87 Feuille de route pour la transition écologique in MC "sur l'organisation du débat

national de la transition énergétique" of 30 January 2013 6.


Despite the aforementioned agenda, the reality of the debate was more

complex, especially because the debate started later than planned, with

the circular and the charter only published at the end of January 2013.

Also, the three phases were not hermetically separated, as some events

also contributed to the information of the public later in 2013, like the

Energy Days or the official website of the debate, providing information

and collecting contributions during the first half of 2013.

However, it remains that from February to May 2013, more than 850

labelled local events took place, attracting more than 170 000 people in all

of France.88 The following events and the website provided easy-to-

reproduce effective initiatives.

3.2.1 The Energy Days

The Energy Days encouraged energy companies and local authorities to

open the doors of their energy facilities to the public during three days in

March 2013.89 Based on the model of the Journées du Patrimoine

(Heritage Days) – that consist in opening to the public otherwise closed or

submitted to entry fee historical sites, monuments and museums- this

event allowed around 200 000 visitors to discover wind and solar farms,

dams, biomass heating plants, electricity distribution centres, passive

buildings, etc.90

Although the event was more focused on promoting access to information

than participation, it contributed to "open the black boxes" (according to

the expression of the philosopher Pascal Chabot91) of energy by

demystifying energy production, transportation, distribution and

consumption. As these energy facilities are effectively not easily

accessible to those not working in them; the Energy Days opened up the

possibility of visiting such facilities allowing a better understanding of

different energy sources but also of the energy transition as a whole.

3.2.2 The Citizen Day

The Citizen Day took the shape of panels of around a hundred of citizens

per region, taking place the same day: 25 May 2013. Planned to happen in

26 regions, it finally only saw the light in 14, mobilising a total of 1115

citizens.92 The questions submitted to the panels were the same in all the

regional gatherings and a unique protocol (named "World Wide Views")

88 Synthèse des travaux du DNTE 5. 89 MC of 30 January 2013 4. 90 Synthèse des travaux du DNTE annex 3 8. 91 Chabot "La transition, un concept philosophique transversal". 92 Synthèse des travaux du DNTE annex 3 9.


was used to orientate the debates.93 This single methodology allowed to

discern the significant differences in energy concerns depending on the

geographical context. It also allowed to select participants, who were not

especially knowledgeable about energy, for the Citizen committee. It then

appeared that after having been informed of the energy transition goals

and issues, most of the participants considered it as a chance for

society.94

3.2.3 The website

The DNTE-specific website95 was launched on 31 January 2013. It

contained the programme of the events and the documentation elaborated

upon and validated by the expert committee, but was also open for online

contributions.96 The charter itself guaranteed that the online contributions

would be transmitted to the CND.97

In total, 1200 contributions were posted on the website.98 This tool allowed

the participation of people unable or unwilling to attend to one of the

events of the DNTE. However, it also found a limit in the sense that many

of the contributors were already engaged people (in favour or opposed to

the energy transition or some of its aspects).

On the basis of the above, it seems that the strength of the DNTE process

was in the combination of a series of tools and bodies, allowing each one

to compensate the flaws of the others. Nevertheless, the downside of the

debate is that its architecture was criticised for its complexity.99 Namely,

the complexity of its organisation with many different bodies, but also the

complexity caused by the maintained uncertainty regarding its

methodology and its decision-making method, postponing the difficult

choices, especially the question of the adoption of the final synthesis.100

As described below, such a complex system had a strong negative impact

on the outcome of the DNTE.

4 Outcome of the national debate

The outcomes of the DNTE are hereunder classified in two categories,

namely firstly concerning the outcomes of the debate before the final

synthesis, which means the preliminary syntheses of the local debates

93 MC of 30 January 2013 4. 94 Synthèse des travaux du DNTE annex 3 9. 95 France 2017 http://www.transition‐energetique.gouv.fr. 96 MC of 30 January 2013 4. 97 Section 3 paras 3-4 of the Charte du DNTE. 98 Synthèse des travaux du DNTE annex 14 2. 99 Eg Tsuchiya "Les débats nationaux sur la transition énergétique". 100 A point already highlighted by the NGOs before the beginning of the DNTE. See

RAC-F 2012 http://www.rac-f.org/Note-de-position-des-associations.


and of different committees, and secondly, concerning the conclusion of

the DNTE as a whole, tarnished by the flaws of its decision-making

process.

4.1 The main outcomes of the debate before the final synthesis

These outcomes may be organised in two sub-categories: the consensus

of the participants and their disagreements.

4.1.1 The consensus emerging from the participants of the debate

It resulted from the DNTE bodies as well as from the layman participants

that energy transition was seen as an opportunity and that energy savings

was a priority action.101 Regarding the energy mix, a positive consensus

on the use of renewable energy sources in general with a demand for

support by public authorities to foster their development was evident.

Actually, the local debates syntheses argued for a higher share of

renewable energy in the energy mix than what was planned by the

Government.102

Another consensual topic among the public was the decentralisation of

energy production. This goes against the views of the Government as well

as the incumbent energy producers. Citizens saw the French society in

2050 organised around local energy production hubs close to population

and labour catchment areas, hereby promoting energy autonomy and self-

consumption.103

4.1.2 The disagreements emerging from the participants of the debate

There were some cross-cutting divisions in the debate, regardless of the

means of participation. The two main disagreements were nuclear

electricity reduction and the increase of wind energy. Solar photovoltaic

energy also created division, more particularly regarding the cost of its

support.104

Energy prices also caused division between informed users and the

uninformed. When internet contributors called for a higher tax on polluting

energies and for progressive electricity tariffs in order to reveal the true

price of energy, the citizens consulted on the ground were much more

careful and some even opposed such energy prices increases.105

As a result of these public participation meetings (part of the greater

national debate), the law-maker had rich material at its disposal and above

101 Synthèse des travaux du DNTE annex 14 8, annex 9 2. 102 Synthèse des travaux du DNTE annex 9 37. 103 Synthèse des travaux du DNTE annex 9 14, annex 14 13. 104 Synthèse des travaux du DNTE annex 14 9, 16 and 17. 105 Synthèse des travaux du DNTE annex 14 18-19, annex 9 15.


all a clear picture of the public perception of energy transition in France.

How this material was used and integrated into the eventual Act will be

discussed in the following paragraphs.

4.2 The chaotic conclusion of the debate and its consequences

The DNTE charter and the other annex documents of the Ministerial

circular of January 2013, did not specify the decision-making method or

how to validate the final synthesis and its recommendations, constituting a

sword of Damocles upon its fulfilment.

A draft of synthesis was prepared by the General secretary and released

on the DNTE website on 13 June 2013, before the eighth and penultimate

plenary session of the CND. Its methodology was the following: the

monitoring committee proposed to the CND members to rank the

measures presented by its own working groups. The draft synthesis

resulting from this process emphasised some trends and indicated the

number of CND members picking out each measure. As a result, the

introduction of a carbon tax obtained the highest ranking, as it had been

placed first by 19 members coming from six of the seven colleges. The

college which did not choose this measure among the 273

recommendations proposed was the one of the employers. The

employers' unions' representatives then estimated that the document was

"unacceptable" and that "this draft synthesis pretends to be consensual

while built on an absurd computing of the expressed views per college". It

was finally withdrawn later; therefore, it was never presented to the

CND.106 This rejection was a direct consequence of the postponement of

the decision method clarification by the Government.

One month later, the 18 July 2013, in a plenary session, the CND finally

adopted 15 issues, instead of adopting recommendations, a less

compelling notion. The notion of recommendation was in fact rejected by

both the employers' unions and part of the employees' unions. It is to be

noted that some of the original recommendations submitted to the vote of

the CND before its 8th plenary session were supposed to be prerequisites

of the DNTE (the nuclear reduction by 2025, for example), but finally they

were rejected by the aforementioned members anyway. This situation then

constituted a breach of the principle of this public debate process, as

some of these objectives were mentioned in the DNTE charter.107

The CND members adopted the 15 issues nearly unanimously, with the

exception of one employee union. It seems that it was easier to agree on a

watered-down (the carbon-tax was discreetly mentioned in the corps of

106 Le Billon 2013 https://www.lesechos.fr/20/06/2013/lesechos.fr/

0202843430081_transition-energetique---le-coup-de-force-du-medef.htm#. 107 Section 1 para 1 of the Charte du DNTE.


issue 11) and not very compelling document (with issues instead of

recommendations). This goes directly against the charter which requested

"recommendations" to be addressed to the law-maker,108 here less tied by

the chaotic result of this process.

The following section will look at the integration of the 15 agreed issues as

well as to some of the aspects highlighted during the DNTE into the

Energy Transition Act adopted in August 2015.

5 Integration of the national debate outcome in the

Energy Transition Act

Although it was first planned to be presented to the Parliament in June

2013, the Energy Transition draft legislation was only submitted to the

Assemblée nationale on 30 July 2014. After many hours of disputed

debate within the Assembly, the draft was referred to the Conseil

constitutionnel and mostly declared valid the 13 August 2015. Finally, on

17 August 2015, the Energy Transition for Green Growth Act n° 2015-992

was promulgated by the President of the Republic.109

What now remains to be assessed is whether the outcomes of the DNTE

were taken into account in the writing of the Energy Transition Act, in order

to determine the effectiveness of the public participation process in the

framework of the national debate. The following paragraphs analyse three

of the main themes addressed during the DNTE and into its synthesis and

can be deemed essential for the fulfilment of the energy transition: GHG

emissions reduction, electricity production and energy policy and planning.

5.1 The integration of GHG emissions reduction objectives and

measures from the DNTE into the Energy Transition Act

Issue 1 of the synthesis of the DNTE entitled "An energy transition

providing a long term orientation and respecting the commitments of

France",110 mentioned multiple principles to be respected and actions to

be conducted. Among those principles, the objective to reduce by three-

quarters of the total GHG emissions by 2050 compared to 1990,111 was

reiterated by section 1, paragraph III of the 2015 Energy Transition Act. In

addition, the milestone of 40% of GHG reduction by 2030 on the 1990

108 Section 1 para 5 of the Charte du DNTE. 109 Regarding all this process, see National Assemblee 2015 http://www.assemblee-

nationale.fr/14/dossiers/transition_energetique_croissance_verte.asp. 110 All the issues (1-15) are clearly numbered in the Synthèse des travaux du DNTE,

at the pages 10 to 30. 111 Section 2 of the Programming Act setting the Orientations of Energy Policy 2005-

781 of 13 July 2005 already included such objective.


basis coming from the actions required by the synthesis was also included

in the same section of the Act.112

Issue 1 of the synthesis also dealt with energy consumption. Among the

actions it proposed, the synthesis acknowledged that the energy transition

scenarios which reach the goal of a division by a factor four of the GHG

emissions by 2050 are based on a reduction of the final energy

consumption by 50% compared to 2012. Yet, the synthesis stated that this

objective was not a consensual one among the actors of the DNTE. Again,

despite the lack of a general agreement, this goal was transposed to the

section 1, paragraph III of the Energy Transition Act.113

Issue 11, on energy transition financing, called for a "tax regime coherent

with the energy transition" and, therefore, including a carbon tax. This

issue was also a contested one amongst the DNTE actors. A carbon tax,

however, was already integrated in section 32 of the Finance Act of 2014

and was therefore not included into the Energy Transition Act.114

5.2 The integration of electricity production objectives and

measures from the DNTE into the Energy Transition Act

5.2.1 Nuclear electricity reduction: objectives and measures

Another principle of issue 1 was the objective to diminish the share of

electricity from nuclear source to 50% of the mix by 2025.115 The synthesis

specified that there were disagreements on this goal, especially regarding

the risk to increase GHG emissions if the replacement technologies are

less cleaner. Despite that, this principle was integrated into section 1,

paragraph III of the Energy Transition Act as well.116 However, as it will be

described below, the problem with this objective lies into the tools for its

implementation.

When it comes to issue 10 and its part focused on nuclear energy, the

synthesis invited the law-maker to integrate into the bill and then the act,

the capacity for the State authorities to decide, for energy policy reasons,

to decommission a nuclear electricity production facility. The synthesis

specified that this is another contested issue. Yet, the Energy Transition

Act does not provide such a mandate to the State authorities. The Nuclear

Safety Authority (ASN) then remains the only public authority (but statutory

independent) to be able to force the decommissioning of a nuclear plant

112 Both now in the Energy Code, s L. 100-4, 1. 113 Energy Code s L. 100-4, 2. 114 Finance Act for 2014 2013-1278 of 29 December 2013. 115 71,6 % in 2017. See RTE 2018 http://bilan-electrique-2017.rte-france.com/

production/le-parc-de-production-national/. 116 Energy Code s L. 100-4, 5.


and only for safety reasons.117 This failure jeopardises to a great extent

the objective of nuclear electricity share reduction.118

5.2.2 Renewable electricity increase: objectives and measures

Issue 10, regarding the energy mix, mentioned an "ambitious" objective of

30 to 40% of renewable energy sources into the electricity production by

2030, depending of the evolution of the electricity consumption. Still in the

same section 1, paragraph III of the Act, the highest goal of 40% is

chosen.

Issue 2 of the synthesis, entitled "An energy transition by all and for all"

requested to develop community financing mechanisms for renewable

energy sources. Section 111 of the 2015 Act is completely dedicated to

the development of a better framework for renewable energy community

financing. This provision actually completed some first steps done in

2014.119

It is a problem that the Energy Transition Act does not provide the

adequate tools for a simplified harnessing of renewable energy sources.

The example of onshore wind energy is striking, with some provisions

actually making its development more difficult. Concretely, section 139 of

the 2015 Act states that the administrative authorisation to operate a wind

farm determines the suitable distance between the facility and the closest

dwellings on the basis of the EIA and with a minimum distance of 500m.

This decision will then take place once the EIA has been completed and

the project has been designed (which involves a high investment already).

The former regime consisted in a minimal distance of 500m, but not

subject to a potential extension during the authorisation process.120 The

Energy Transition Act, in this regard, added complexity to wind energy

development.

5.3 The integration of energy policy and planning measures from

the DNTE into the Energy Transition Act

Issue 1 also suggested to generalise an energy planning method, passing

from a sectorial one (electricity, gas, heat) to one encompassing energy

more broadly. This new planning was then supposed to be submitted by

the Government for approval by Parliament every 5 years. Though, while

the "Multiannual energy planning" (Programmation pluriannuelle de

l'énergie – PPE) has been created and is regulated by section 176 of the

117 Grandjean 2014 Études 33. 118 For a more detailed development on this aspect, see Mauger 2018 JWELB. 119 By the Ordinance 2014-559 of 30 May 2014 on Crowd-funding and the Social and

Solidarity Economy Act 2014-856 of 31 July 2014. On this topic, see also Guerry "Reflection on Some Legal Aspects of Decision Control" 214-217.

120 Environment Code s L. 553-1 (version before the 19 August 2015).


Energy Transition Act, it was not submitted to the Parliament and its

revisions will not be either. This democratic oversight is of primary

importance as this aspect of the DNTE synthesis was not respected.

Issue 2, the last action it recommended aims at "promoting the co-writing

of energy policies with the citizens, in the spirit of Aarhus Convention".121

But nothing was mentioned on this topic in the 2015 Energy Transition Act.

At best, it can be linked to section 1, paragraph II122 concerning the means

to reach the objectives of the energy policy, when it requests the

information of all and transparency, "especially on energies costs and

prices, but also on their health, social and environmental impacts". Neither

this section nor the others in the Act mention the role of citizens and public

participation in the writing of the energy policies.

6 Conclusion and recommendations

The DNTE significantly pushed the boundaries of the previous energy-

policy related public debates by developing an energy policy- and law-

making process in France. As the outcome of the public debate shows, it

experienced successes and failures. The public participation process in

itself was a success, especially on a theme as technical as energy.

However, the main failures include the chaotic ending of the DNTE, which

had an impact on the ambition of the synthesis, and the final inclusion of

the recommendations in the Energy Transition Act, somehow

disappointing on some topics and leading some authors to consider all this

process as a sum of "political statements barely hiding public authorities'

pusillanimity when the transition has to be implemented".123

Based on the experience of France, in order to promote a real public

participation in the design of energy policies or legal frameworks related to

energy transition (or even on other related topics), the following aspects

should be considered:

- Public participation legal requirement for energy policy- and law-

making. Law-makers should adopt the obligation to submit the

drafting of any new energy-related policy or law to public

participation. For Aarhus convention parties, this will reinforce their

transposition of the text, and for other States, this will show their

understanding of the current global energy transition.

- Diversity. Diversity of opinions, views, backgrounds, etc., should

guide the public debate, including diversity in relation to gender

121 Aarhus Convention (1998). 122 Energy Code s L. 100-2. 123 Tesson 2015 AJDA 1965. Denolle also refers to "vague objectives" and "mere

incentives to take action", see Denolle 2016 RJE 101.


issues. The actors solicited in the debate and its organising bodies

should all be guided by the idea of diversity in order to enrich the

process and provide a strengthened legitimacy to its unfolding.

- Clarity. The framework of the debate (schedule, bodies, decision-

making method) should be clear (ease of access, sufficient

advertisement…) to raise the interest of the population and increase

its participation.

- Predictability. The steps of the debate's decision-making process

need to be determined from the beginning and respected at all the

stages of the process to avoid its capture by a minority at the end

and a watering-down of the final document.

- Respect for the results. The outcome of the debate should be

respected by the law-maker when designing the energy law and

policy to enhance the value of the debate and not to erode the

public's confidence in the participation processes.

In conclusion, for the energy policies and laws to be adapted to an era of

energy transition it is necessary to increasingly involve a country's citizens

into their drafting. The case of France provides an example of a positive

initiative which, however, suffered implementation difficulties.

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LIST OF ABBREVIATIONS

AJDA Actualité Juridique Droit Administratif

ASN Nuclear Safety Authority

Bull At Sci Bulletin of the Atomic Scientists

CEA

CLER

Atomic Energy Commission

Comité de Liaison Energies Renouvelables

CND National Council of the Debate

DNTE National Debate on the Energy Transition

EIA Environmental impact assessment

Environ Policy Gov Environmental Policy and Governance

ERSS Energy Research and Social Science

GHG Greenhouse Gases

IDDRI Institut du développement durable et des

relations internationales


J Environ Pol Plann Journal of Environmental Policy and

Planning

JWELB Journal of World Energy Law and Business

MC Ministerial circular

NGO Non-Governmental Organisation

PPE

RAC-F

RJE

Programmation pluriannuelle de l'énergie

Réseau Action Climat – France

Revue Juridique de l'Environnement

RTD Civ

RTE

Revue trimestrielle de droit civil

Réseau de Transport d'Électricité

Documents

Promoting Public Participation in the Energy Transition: R